The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Saturday, October 24, 2015

Riding the Bench

There are some words that shouldn't be said in certain places. Not everything that is permissible to say is advisable to say.

This case sets out what type of speech is protected and when speech goes too far. Mr. Tracy was upset with his daughter's basketball coach and wanted to speak to her after the game. His daughter didn't get to play and he wasn't too happy about it. So, he walked to the parking lot and up to the coach's car. He started with the simple questions, like: "Why didn't you play my daughter in the game?"

The coach explained that what's best for the team isn't always what's best for an individual player. This did not please Mr. Tracy, and he became agitated. He got louder. His voice tensed and became more angry in tone. He began to use profanity and even told the coach, "This isn't the f*ing NBA!" Finally, he called her a "bitch" and the coach drove away saying, "This conversation is over!" and Mr. Tracy proclaimed for all to hear, "This will never be over!" Mr. Tracy was then charged with disorderly conduct and assault by menace.

Mr. Tracy choose to have a bench trial (no jury, just a judge). At the trial, the judge found him not guilty of the assault charge but found him guilty of disorderly conduct for abusive or obscene language. The judge said that his words were "fighting words" and that he had "crossed the line." Mr. Tracy appeals, arguing that his speech was protected under the First Amendment of the Constitution and that the statute is unconstitutional.

SCOV's decision starts off with a little primer on First Amendment law. Basically, the idea is that no law is allowed to restrict expressive speech based on its content. The First Amendment does not care if the expression is popular, true, wise, or dignified—all expressive speech is protected. Well . . . almost. Occasionally, speech carries so little social value that it is no longer protected.

"Fighting words" traditionally fall within this category of unprotected speech. SCOV recounts the original 1942 "fighting words" case from the SCOTUS. In that case, a man started howling, "You're a goddamn fascist and a racketeer" at a politician. The man's speech was not protected but rather was found to be "fighting words" and likely to incite violence. This isn't looking good for Mr. Tracy.

However, SCOV continues to turn the pages of history, finding many subsequent cases allowing for much more offensive and disruptive speech. For example, in one case, SCOTUS ruled that a leader or a protest who shouted, "We'll take the f*ing street again" was protected because his threat was not imminent and not likely to incite violence. Then SCOV reviews this one—with the folks picketing about gays in the military at a soldier's funeral with their "outrageous" speech. And SCOTUS protected that speech too.

SCOV then turns to Vermont case law and looks at our cases. The SCOV compares two important cases—Read and Long. Now in State v. Read, the fellow was arrested for DUI and started getting more and more agitated with the trooper, he swore at him and flexed his arms, clenching his teeth and told the trooper, "You're dead." SCOV concluded that kid of behavior is not cool. However, in Long v. L'Esperance, the defendant was at a DUI check point and commented about how the officer was acting like an f*ing drill sergeant and expressed anger about having to wait in traffic so f*ing long. This, SCOV concluded was protected. It's the difference between an actual threat and offensive grumbling.

Now back to Mr. Tracy. SCOV concludes that in this context, and under the circumstances, Mr. Tracy's words and actions were not likely to cause any violent reaction. Therefore, they were not fighting words and are protected under the First Amendment.

SCOV decides (under what J. Scalia likes to call, "Ye ol' totality of the circumstances test") if the speech is reasonably likely to cause immediate violence then it can be criminally punished, but if not, then it's not a crime. It's all about what is reasonable. So no bright-line test emerges. The statute is not struck down as unconstitutional. We're just going to have to continue to evaluate each case according to its particular circumstances.